Opinion
No. 2:08-cv-00029-MCE-DAD.
September 30, 2008
MEMORANDUM AND ORDER
Presently before the Court is Defendants Glenn Medical Center, Woody Laughnan, Jr., Richard Baldwin, and Donna Tomsich's Motion to Dismiss Plaintiff Reynaldo Cabral's First Amended Complaint.
Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
The factual assertions in this section are based on the allegations in Plaintiff's First Amended Complaint.
On January 4, 2007, after visiting with his family and stating he would not hurt himself, Plaintiff was released to the care of his family. Upon learning of Plaintiff's recent psychotic behavior, his family attempted to have him readmitted. Butte County Behavioral Health declined to readmit Plaintiff. On January 5, 2007, Plaintiff began to hear voices from God instructing him to kill his girlfriend. On January 6, 2007, he attacked his girlfriend. He was arrested by members of the Glenn County Sheriff's Department and taken to Glenn County Jail. At the time of his arrest, Plaintiff's brother informed the officers of the circumstances of Plaintiff's recent psychiatric hold. Glenn County Jail was informed both by a friend of Plaintiff and by a doctor familiar with Plaintiff of his psychiatric condition.
At 1048 on January 6, 2007, Plaintiff was examined by nurse Donna Tomisch at the Glenn County Jail. Nurse Tomisch concluded that Plaintiff was suicidal, demonstrated abnormal behavior and depression, and did not appear to be under the influence of alcohol or drugs. She was aware of his suicidal attempt, the earlier Welfare Institutions § 5150 hold, and the events leading up to it.
There is apparently some confusion as to the relationship between Nurse Tomisch, Glenn Medical Center, and Glenn County Jail. The First Amended Complaint alleges that Nurse Tomisch is an employee of Glenn County Jail. In opposition to this motion, Plaintiff alleges she is an employee of Glenn Medical Center. Because this is a motion to dismiss the First Amended Complaint, the Court will address the allegations therein, namely, that Nurse Tomisch is an employee of Glenn County Jail.
Following her examination, Nurse Tomisch and Corporal Rosemary Carmen contacted Glenn County Mental Health and spoke with Richard Gordon. Nurse Tomisch asked Mr. Gordon to assess Plaintiff, and Mr. Gordon responded that he needed to contact his supervisor and clarify the role of Glenn County Mental Health in this situation.
After speaking with Mr. Gordon, Nurse Tomisch had to leave Glenn County Jail and report to her other job at Shasta County Jail. She contacted Glenn County Mental Health and asked that future contacts concerning Plaintiff be directed to Corporal Carmen. Subsequently, Glenn County Mental Health told personnel at Glenn County Jail they had no contract with the jail and refused to provide mental health services for Plaintiff.
In the early morning hours of January 8, 2007, Plaintiff removed his clothes, vomited, and began throwing feces, urine, and vomit around his cell. Several law enforcement officers entered Plaintiff's cell on two occasions and attempted to subdue him, using a "taser weapon," an "electric stun type shield," and pepper spray. Thereafter, Plaintiff was taken for a brief shower and placed in another cell where the walls were coated with rubber.
At approximately 0445 on January 8, 2007, Plaintiff collided with the wall of his cell and broke his neck at level C-5, causing quadriplegia. At 0705, Plaintiff was observed and examined at a distance by someone from the Glenn County Jail, possibly Richard Baldwin. According to the examination report, Plaintiff was "prone on the floor breathing and moaning." At 1110, Nurse Baldwin, Officer Josh Van Eck, and Officer Dee Dee Nelson noted Plaintiff claimed paralysis and a broken neck, and that he promised to be good.
At 1309, a nurse from Glenn County Jail entered Plaintiff's cell. Plaintiff did not respond to painful stimuli and told the nurse he was paralyzed. Emergency services personnel were summoned and arrived at approximately 1324. Plaintiff was transported by ambulance to Glenn Medical Center where he was confirmed to be quadriplegic. Plaintiff was then transferred to Enloe Medical Center where he was evaluated and diagnosed with a fracture of his fifth cervical vertebrae.
Plaintiff's Complaint names approximately 27 defendants, including Defendant Glenn Medical Center, Woody Laughnan, Jr., Nurse Richard Baldwin, and Nurse Donna Tomsich (collectively "Defendants"). Plaintiff alleges Defendants engaged in conduct constituting violation of Plaintiff's rights under the Fourteenth Amendment to the Constitution of the United States; violation of Plaintiff's rights under California Civil Code §§ 51, 51.7, 52.1, and 52.3; violation of Plaintiff's rights under California Welfare and Institutions Code §§ 15657 and 15657.5; intentional infliction of emotional distress; violation of Plaintiff's rights under California Government Code § 845.6; and violation of Plaintiff's rights under Article I, § 7 of the California Constitution. Defendants now move to dismiss Plaintiff's First Amended Complaint for failure to state a claim under Rule 12(b)(6).
Plaintiff's First Amended Complaint alleges that Mr. Laughnan was, at all times relevant, the administrator of Glenn Medical Center.
STANDARD
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 21 (citing 5 C. Wright A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").
If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the amendment. . . ." Fed.R.Civ.P. 15(a);Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
ANALYSIS
1. Plaintiff's § 1983 ClaimPlaintiff's First Claim for Relief asserts a cause of action under 42 U.S.C. § 1983 for violation of the Fourteenth Amendment alleging that Defendants Tomsich, Baldwin, Laughnan, and Glenn Medical Center, acting under color of law, deprived Plaintiff of his right to due process under the Fourteenth Amendment by denying him his right to health care and by being deliberately indifferent to his serious health care needs.
"[T]he more protective fourteenth amendment standard applies to conditions of confinement when detainees . . . have not been convicted" of a crime. Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987)). The Due Process Clause requires, at least, that "persons in custody have the established right to not have officials remain deliberately indifferent to their serious medical needs." Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002) (quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)). This extends to psychiatric needs as well. Id. (citing Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 (9th Cir. 1988)). Defendants are "deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Lolli v. County of Orange, 351 F.3d 410, 419 (9th Cir. 2003) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)) (finding liability under § 1983 where jail officers were aware that detainee was a Type I diabetic and failed to provide medically necessary food or insulin).
The allegations regarding Nurse Tomisch are as follows: between 1048 and 1140 on January 6, Nurse Tomisch conducted an examination of Plaintiff and determined he was suicidal, demonstrated abnormal behavior and depression, and did not appear to be under the influence of alcohol or drugs. Nurse Tomisch was aware of Plaintiff's prior suicide attempt. Nurse Tomisch then contacted Glenn County Mental Health to obtain a mental health assessment. She was informed by staff at Glenn County Mental Health that they needed to contact their supervisor to clarify Glenn County Mental Health's role in Plaintiff's care. Nurse Tomisch asked that future contacts be directed to Corporal Rosemary Carmen because she had to report to her other job at Shasta County Jail.
The allegations regarding Nurse Baldwin are as follows: Nurse Baldwin "possibly" observed Plaintiff from a distance at 0705 on January 8, 2007, and "possibly" reported Plaintiff was prone on the floor breathing and moaning. Aside from this possible allegation, Nurse Baldwin's involvement is limited to a notation at 1110 on January 8, 2007, stating Plaintiff promised to be good and claimed paralysis and a broken neck. However, if taken as true, these allegations suggest that Nurse Baldwin allowed Plaintiff to remain in a prone position in his cell for over four hours with a broken neck.
Plaintiff has stated a claim upon which relief may be granted against both Nurse Tomisch and Nurse Baldwin. He has alleged that Nurse Tomisch was aware of his suicidal condition and did not seek effective psychiatric help for Plaintiff. Plaintiff has also alleged that Nurse Baldwin had reason to believe Plaintiff was injured when he found him lying on the floor moaning, allowed Plaintiff to remain in that state for four hours, and failed to provide medical assistance when Plaintiff stated that he was paralyzed and suffering from a broken neck. In each instance, the Defendant was aware that Plaintiff was in need of medical assistance and failed to provide it.
Because Plaintiff has alleged that the actions of Nurse Baldwin were pursuant to the customs and policies of Defendants Laughnan and Glenn Medical Center, Plaintiff has also stated a claim against these Defendants.
Accordingly, Defendants' Motion to Dismiss is denied as to Plaintiff's First Claim for Relief under 42 U.S.C. § 1983.
2. Plaintiff's Claims Under California Civil Code §§ 51, 51.7, 52.1, and 52.3
Plaintiff's Third Claim for Relief alleges that Defendants Tomsich, Baldwin, Laughnan, and Glenn Medical Center violated Plaintiff's rights to protection under California Civil Code §§ 51, 51.7, 52.1, and 52.3.
Plaintiff concedes that he has failed to state a claim under California Civil Code §§ 51, 51.7, and 52.1 but seeks leave to amend to specifically allege the requirements of these statutes. Leave is so granted.
California Civil Code § 52.3 provides that:
No governmental authority, or agent of a governmental authority, or person acting on behalf of a governmental authority, shall engage in a pattern or practice of conduct by law enforcement officers that deprives any person of rights privileges or immunities secured or protected by the Constitution or laws of the United States or by the Constitution or laws of California.
Plaintiff's cause of action based on § 52.3 is premised on the failure to provide mental health care and health care while he was detained. Because this may constitute an unlawful pattern or practice of conduct designed to deprive Anderson of certain legal rights, this Court cannot say that Plaintiff has failed to plead a claim upon which relief may be granted. Defendants argument that they are not law enforcement officers, however, the plain language of the statute does not require that the defendants be law enforcement officers, only that they engage in a pattern or practice of conduct by law enforcement officers. Given the relationship between Defendants and the Glenn County Jail, it is plausible that Defendants could have engaged in such a pattern or practice. As to this claim, Defendants' Motion to Dismiss is denied.
3. Plaintiff's Claims Under California Welfare and Institutions Code §§ 15657.5 and 15657
Plaintiff's Fourth Claim for Relief alleges that Defendants Tomsich, Baldwin, Laughnan, and Glenn Medical Center were reckless, oppressive, and/or malicious, and a violation of Plaintiff's rights to protection under California Welfare and Institutions Code §§ 15657.5 and 15657.
Plaintiff concedes that he has failed to state a claim under these provisions, but seeks leave to amend to state a claim under Welfare and Institutions Code § 15610.57. Leave to amend is granted.
4. Plaintiff's Claim for Intentional Infliction of Emotional Distress
Plaintiff's Fifth Claim for Relief alleges that Defendants Tomsich, Baldwin, Laughnan, and Glenn Medical Center engaged in conduct that amounted to intentional infliction of emotional distress. In his opposition, Plaintiff clarifies his position: that Defendants abandoned Plaintiff, that he suffers extreme emotional distress, and that medical care could have markedly improved or reversed his paralysis.
Under California law "[t]he tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct." Berkeley v. Dowds, 152 Cal. App. 4th 518, 533 (2007) (citations omitted). The conduct must be so outrageous that it "exceeds all bounds of that usually tolerated in a civilized community." Id. (citations omitted).
A. Nurse Tomisch and Nurse Baldwin
The allegations regarding Nurse Tomisch are as follows: between 1048 and 1140 on January 6, Nurse Tomisch conducted an examination of Plaintiff and determined he was suicidal, demonstrated abnormal behavior and depression, and did not appear to be under the influence of alcohol or drugs. Nurse Tomisch then contacted Glenn County Mental Health to obtain a mental health assessment. She was informed by staff at Glenn County Mental Health that they needed to contact their supervisor to clarify Glenn County Mental Health's role in Plaintiff's care. Nurse Tomisch asked that future contacts be directed to Corporal Rosemary Carmen because she had to report to her other job at Shasta County Jail.
The allegations regarding Nurse Baldwin are as follows: Nurse Baldwin "possibly" observed Plaintiff from a distance at 0705 on January 8, 2007, and "possibly" reported Plaintiff was prone on the floor breathing and moaning. Aside from this possible allegation, Nurse Baldwin's involvement is limited to a notation at 1110 on January 8, 2007, stating Plaintiff promised to be good and claimed paralysis and a broken neck.
These facts as pleaded do not rise to the level of extreme and outrageous conduct required by California law to state a claim for intentional infliction of emotional distress against either Nurse Tomisch or Nurse Baldwin. Further, it is not clear from Plaintiff's pleading that Nurse Tomisch or Nurse Baldwin's conduct caused his emotional distress.
Plaintiff alleges that he suffers emotional and nervous pain and suffering in conjunction with his broken neck. While an injury of that magnitude might cause emotional distress, Plaintiff has not pleaded the requisite causation between Nurse Tomisch or Nurse Baldwin's conduct and his emotional distress. Accordingly, Plaintiff's Fifth Claim for Relief against Defendants Tomsich and Baldwin is dismissed with leave to amend.
B. Defendant Laughnan
Plaintiff's First Amended Complaint makes no allegations as to Defendant Laughnan that meet any of the elements of his claim for intentional infliction of emotional distress. Accordingly, Plaintiff has not pleaded a claim upon which relief may be granted and Plaintiff's Fifth Claim for Relief against Defendant Laughnan is dismissed with leave to amend.
C. Defendant Glenn Medical Center
"The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment." Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal. 4th 291, 296 (1995) (citing Perez v. Van Groningen Sons, Inc., 41 Cal. 3d 962, 967). Plaintiff has failed to plead a cause of action for intentional infliction of emotional distress against any employee of Glenn Medical Center. Accordingly, respondeat superior liability will not lie.
Further, it is not clear from Plaintiff's pleading that Glenn Medical Center's conduct caused his emotional distress. Plaintiff alleges that he suffers emotional and nervous pain and suffering in conjunction with his broken neck. While an injury of that magnitude might cause emotional distress, Plaintiff has not pleaded the requisite causation between Glenn Medical Center's conduct and his emotional distress. Accordingly, Plaintiff's Fifth Claim for Relief against Glenn Medical Center is dismissed with leave to amend.
5. Plaintiff's Claims Under California Government Code § 845.6
Plaintiff's Sixth Claim for Relief alleges that Defendants Tomsich, Baldwin, Laughnan, and Glenn Medical Center violated California Government Code § 845.6 in failing to provide medical or psychiatric attention to Plaintiff who was known to be in need of immediate care due to an obvious medical or psychological condition.
Section 845.6 provides that a public entity or public employee is not liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody except where the employee knows or has reason to know that the prisoner is in need of immediate medical care and fails to take reasonable action to summon such care.
Plaintiff concedes that Defendants Baldwin, Laughnan, and Glenn Medical Center are not public entities or public employees and that § 845.6 does not apply to those defendants.
Accordingly, as to Defendants Baldwin, Laughnan, and Glenn Medical Center, Plaintiff's Sixth Claim for Relief for Violation of Government Code § 845.6 is dismissed without leave to amend.
As to Nurse Tomsich, Plaintiff's First Amended Complaint alleges that Nurse Tomsich was an employee of Glenn County and the Glenn County Jail. Plaintiff alleges that Nurse Tomsich examined Plaintiff, determined that he was suicidal, demonstrated abnormal behavior and depression, and did not appear to be under the influence of alcohol or drugs. She was aware of Plaintiff's prior suicide attempt. Nurse Tomsich phoned Glenn County Mental Health and requested that Plaintiff be assessed. Nurse Tomsich then left Glenn County Jail for her other job at Shasta County Jail. The provision of § 845.6 upon which Plaintiff relies makes exceptions for failure to diagnose and/or medicate a mental illness (Cal. Gov't Code § 855.8) and for to confine a person for mental illness (Cal. Gov't Code § 856). According to Plaintiff's allegations, during the time Nurse Tomsich examined Plaintiff, he was not in need of immediate medical care. Nurse Tomsich diagnosed Plaintiff as suicidal and depressed, but not under the influence of any drugs or alcohol. Plaintiff may have been in need of attention for his mental health, but § 845.6 does not create liability in that instance. Accordingly, Plaintiff's Sixth Claim for Relief against Defendant Tomsich is dismissed with leave to amend.
6. Plaintiff's Claim for Negligent Hiring
Plaintiff's Seventh Claim for Relief asserts that Defendant Glenn Medical Center was negligent and failed to use due care in hiring of the medical or mental health employees and contractors and in failing to have adequate staff to care for Plaintiff's health care needs.
Under California law, an employer can only be held liable for negligent hiring where he knows the employee is unfit, has reason to believe the employee is unfit, or fails to use reasonable care to determine the employee's unfitness prior to hiring him. Juarez v. Boy Scouts of Am., Inc., 81 Cal. App. 4th 377, 395 (2000) (quoting Evan F. v. Hughson United Methodist Church, 8 Cal. App. 4th 828, 843 (1992)). Here, Plaintiff has failed to allege that Defendant Glenn Medical Center knew, should have known, or with reasonable inquiry could have discovered that any of its employees were unfit for their positions. Accordingly, Plaintiff's Seventh Claim for Relief for Negligent Hiring is dismissed with leave to amend.
7. Plaintiff's Claim Under California Constitution Article I, Section 7(a)
Plaintiff's Twelfth Claim for Relief alleges that Defendants Tomsich, Baldwin, Laughnan, and Glenn Medical Center violated the due process clause in Article I, § 7(a) of the California Constitution. Article I, § 7(a) provides: "A person may not be deprived of life, liberty, or property without due process of law."
Article I, § 7(a) does not "afford a right to seek damages to remedy the asserted violation of the due process liberty interest." Katzberg v. Regents of University of California, 29 Cal. 4th 300, 329 (2002). Plaintiff asserts claims for damages and injunctive relief. As to his claim for damages under Article I, § 7(a), the Motion to Dismiss is granted without leave to amend. As to Plaintiff's claim for injunctive relief, Plaintiff seeks injunctive relief restraining Defendants from engaging in the unlawful and unconstitutional actions described in the First Amended Complaint. This is not a proper basis for injunctive. Plaintiff is no longer in custody. Therefore any injunction regarding Plaintiff's rights would be moot. Accordingly, Plaintiff's Twelfth Claim for Relief for violation of Article I, § 7(a) of the California Constitution is dismissed without leave to amend.
CONCLUSION
Based on the foregoing, Defendants Tomisch, Baldwin, Laughnan, and Glenn Medical Center's Motion to Dismiss is GRANTED in part and DENIED in part. Defendants' Motion to Dismiss is DENIED as to Plaintiff's claim under 42 U.S.C. § 1983 and Plaintiff's claim under California Civil Code § 52.3. Defendants' Motion to Dismiss is GRANTED as to Plaintiff's claim under California Civil Code §§ 51, 51.7, and 52.1, Plaintiff's claim under California Welfare and Institutions Code §§ 15657.5 and 15657, Plaintiff's claim for Intentional Infliction of Emotional Distress, Plaintiff's claim under California Government Code § 845.6, Plaintiff's claim for Negligent Hiring, and Plaintiff's claim under Article I, § 7(a) of the California Constitution. All dismissals are with leave to amend unless the Court has indicated otherwise. The period for amendment provided for herein shall be twenty (20) days from the date this Order is filed.
IT IS SO ORDERED.